Judges for a New Order: The Case for Continued Monitoring after Membership

The European Union is approaching a historic decision to open to the East. Yet just as Europe reaches out, the completion of the accession phase will also mark a closure. Although a few states may be admitted later, there is a sense that a larger Union will be too occupied with assimilating new members and re-ordering itself to contemplate any similarly ambitious transformations for many years to come.

After accession, the challenge will therefore be internal and political, though no less important: to define the vision and the values of Europe’s Union for all its peoples. In no area is this more essential than in defining the values of democracy and the rule of law, and in doing so, the opportunities and the lessons afforded by the accession process should not be lost, but rather built upon. Reforms – and the monitoring mechanisms that encouraged them – should continue as Europe develops its common future.

The desire for membership has generated an unprecedented momentum for reform in the candidate states, and has demonstrated the importance of the role played by the Union in shaping candidates’ behaviour. Twelve years ago, all the candidate states of East Central Europe had judiciaries organised along communist lines that fundamentally rejected the principle of judicial independence. Today, all these states have made a fundamental and permanent commitment to creating an independent, efficient, and accountable judiciary.

The Commission has helped this process by stressing the role states’ judiciaries have in safeguarding citizens’ rights and contributing to a favourable business environment; more recently, it has called on candidates to increase the judiciary’s adjudicative and administrative independence. And candidate states have responded: in the past two years, major judicial reforms have come into force in Bulgaria, the Czech Republic, Estonia, Lithuania, Poland, Slovakia, and Slovenia.

In most of these states, however, the new laws have yet to be fully implemented, and in many cases serious flaws in existing reforms need to be rectified. If reform is to be successful, the priority it has recently received must be sustained beyond the initial legislative phase and, indeed, beyond the date of accession.

But equally importantly, the accession process has shown that the Union itself needs a more comprehensive approach to legal reform. There are few standards on how judiciaries should be organised. The necessary “expert support system” is often uncoordinated and ineffective. States have groped towards acceptable solutions without clear guidance, because the Union has never elaborated minimum standards for democracy and the rule of law.

The need for clear and shared standards extends beyond the candidates. Current member states are also engaged in judicial reform efforts – the Netherlands instituted a new judicial council system only this year, and several other members have recently done the same. Meantime, western European judiciaries face problems similar to those experienced in the East. All member states – new or old – share the same continuing obligations, and all could benefit equally from a clear understanding of what the common values of the Union require of them in practice and in policy.

The Union therefore faces a double challenge: to ensure that all its members comply with the most basic democratic values, and, at the same time, to define and give content to those values, which have been assumed but unvoiced. In this regard, the Union needs to ensure that the standards members are expected to meet are clearly defined and rationally related to the requirements of the Copenhagen criteria. And, of course, that they are consistently applied across the Union.

Defining those values need not mean the imposition of uniform solutions tailored by Brussels bureaucrats. The Union is broad and diverse. Given states’ divergent and proud legal traditions, judicial reform will inevitably have a particular national character. Indeed, considering that the Union embraces members with both common-law and civil-law systems, there will always be broad scope in how states organise their judiciaries.

Yet although that scope may be broad, it is not infinite. There are, and properly ought to be, areas of agreement. If Europe is to become not just a continental free trade zone, but a community of shared values, it must come to some agreement about what values its peoples share as a polity – and what matters remain the purview of each State.

This is where monitoring has a double role to play. Ensuring that states comply with their obligations will require measuring their performance. At the same time, monitoring is itself a spur to clarifying the Union’s unspoken yet commonly accepted standards.

Ideally, such monitoring would be done by the Union itself, or by the member states following agreed common standards. There are good precedents. The Commission has been issuing Regular Reports monitoring the candidates states for years, and many states have robust ombudsman institutions that already engage in monitoring. NGOs could also conduct monitoring, with government cooperation. The Open Society Institute’s European Union Accession Monitoring Program has issued a series of reports examining the candidate states’ records on ensuring judicial independence and capacity. These reports represent a model for how monitoring of continuing membership could be done.

Whatever model is adopted, the monitoring mechanisms should be truly independent, well-staffed and stably funded, and their findings should have political support. Indeed, many of the lessons concerning the judiciary’s independence and capacity apply to the exercise of monitoring itself: without legitimacy, professionalism, and resources, neither enterprise can prosper and contribute to society.

Most importantly, like the act of judging, standard-setting and monitoring should have consequences supported by all members. The Copenhagen Criteria should be understood as a continuing obligation. Deviations from minimum common standards should be justified, not by mere assertion of privilege, tradition, or unique history, but through reasoned, convincing, and – where necessary – continuing evidence that the deviation violates neither the criteria and the values underlying them nor the legitimate needs of an independent and capable judiciary.

The Union is entering a new phase and a new order. It is mature enough to do what all societies must: set up judges over itself, with rules to guide them, for the common good. Ongoing adherence to minimum basic political and democratic standards is a sine qua non of membership. The power to derive those minimum standards and to monitor member states’ compliance with them, is a logical and necessary function of a vital Union.

Timothy Waters is a legal consultant to the EU Accession Monitoring Program (EUMAP) of the Open Society Institute. EUMAP reports on judicial capacity in the ten candidate states of Central and Eastern Europe can be found at: http://www.eumap.org/reports